Delhi High Court
Management Of Hindustan Times ... vs Aita Ram & Ors. on 27 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 10.08.2018
Date of judgment: 27.08.2018
+ W.P. (C) 5607/2016 & CMs 2731/2017, 1681/2018 & 16193/2018
MANAGEMENT OF HINDUSTAN TIMES LTD..... Petitioner
Through: Dr.Abhishek M. Singhvi,
Mr.Sandeep Sethi, Mr.Raj Birbal,
Senior Advocates along with
Ms.Raavi Birbal, Ms.Meghna Mishra,
Mr.Ankit Rajgarhia, Mr.Naman Joshi
and Ms.Riya Singh, Advocates.
versus
AITA RAM & ORS. ... Respondents
Through: Ms.Meenakshi Arora,
Senior Counsel with Mr.Ramesh
Kumar Mishra, Mr.V.Madhukar,
Mr.Sachin Dev Sharma and
Mr.Rajnish Kumar Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J.
1. It needs no emphasis that if a man is deprived of his livelihood,
he is deprived of all his fundamental and constitutional rights and for
him the goal of social and economic justice, equality of status and of
opportunity, freedom enshrined in the Constitution remains illusory.
Therefore, the approach of the Courts must be compatible with the
Constitutional philosophy of which the directive principles of State
policy constitute an integral part and justice due to the workman
should not be denied by entertaining the specious and untenable
grounds put forward by the employer-public or private. [Harjinder
Singh V. Punjab State Warehousing Corpn. (2010) 3 SCC 192)].
2. The essence of our constitution as explained by eminent jurist
Palkhivala was referred to in Harjinder Singh‟s case (supra):-
"Our Constitution is primarily shaped and moulded for
the common man. It takes no account of „the portly
presence of the potentates, goodly in girth‟. It is a
Constitution not meant for the ruler
„but the ranker, the tramp of the road,
The slave with the sack on his shoulders
pricked on with the goad,
The man with too weighty a burden,
too weary a load.‟ "
(N.A. Palkhivala, Our Constitution Defaced and
Defiled, MacMillan, 1974, p.29)"
3. Justice Vivian Bose, who was a part of the Constitutional Bench
in Bidi Supply Co. Vs. Union of India AIR 1956 SC 479, posed the
question "23. After all, for whose benefit was the constitution enacted?"
Having posed the question, Justice Bose answered the same in the
next sentence "23.......I am clear that the Constitution is not for the
exclusive benefit of Governments and States; it is not only for lawyers and
politicians and officials and those highly placed. It also exists for the
common man, for the poor and the humble, for those who have
businesses at stake, for the „butcher, the baker and the candlestick-
maker‟. It lays down for this land „a rule of law‟ as understood in the free
democracies of the world. It constitutes India into a Sovereign Democratic
Republic and guarantees in every page rights and freedom to the individual
side by side and consistent with the overriding power of the State to act for
the common good of all."
4. The preamble to the Constitution of India says:-
WE, THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all its citizens:
"JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and
worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and
the unity and integrity of the Nation;"
The preamble to Constitution is a part of it and the objective specified
in the preamble contain the basic structure of the Constitution as held
in Keshavananda Bharati Sripadgalvaru Vs. State of Kerala, AIR
1973 SC 1461.
5. The first part of the preamble is a declaration whereby the
people of India adopted and gave to themselves the Constitution. The
second part is a resolution whereby people of India solemnly resolved
to constitute India into a SOVEREIGN, SOCIALIST, SECULAR,
DEMOCRATIC, REPUBLIC. The most vital part is the promise to
secure to all its citizens
"Justice, social, economic and political;
Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity;
And to promote among them all
Fraternity assuring the dignity of the individual and the
unity and integrity of the Nation;"
(Justice R.C.Lahoti, Preamble-The Spirit and Backbone of the
Constitution of India, Anundoram Barooah Law Lectures, Seventh
Series, Eastern book Company, 2004, at p.3)
6. The judges have a vital role to ensure that the promise
contained in the preamble to the constitution is fulfilled. It would not
be out of place to refer to Article 38 (I) as under:-
"38. State to secure a social order for the promotion of
welfare of the people- (1) The State shall strive to
promote the welfare of the people by securing and
protecting as effectively as it may a social order in
which justice, social, economic and political, shall
inform all the institutions of the national life."
This is echoing the preambular promise. It is, therefore, the duty of the
judiciary to promote a social order in which justice, social economic
and political, informs all the institutions of the national life.
7. This writ petition is an attempt on behalf of the
petitioner/management i.e. M/s Hindustan Times Limited (HTL) to
impede the efforts being made by the executing Court of learned
Additional District Judge -03, Patiala House Courts, New Delhi (in
short „Ld. ADJ‟) in the execution petition No.23/2016 to execute the
Award dated 23.01.2012 passed by the Learned Presiding Officer
Industrial Tribunal (IT). By Award dated 23.01.2012, the action of
HTL in transferring the ownership of its printing undertaking to its
subsidiary M/s Hindustan Times Media Limited (HTML) w.e.f.
02.10.2004 and terminating the services of the workmen under
Section 25FF of the Industrial Disputes Act, 1947 (ID Act) was held
to be illegal and unjustified and HTL was directed to reinstate 272
workmen treating them in "continuity of service" under the terms and
conditions of service as before their alleged termination. It is a case of
long checkered and tumultuous history where the workmen have still
not seen the light at the end of the tunnel despite the Tribunal having
passed the award in their favour 6½ years ago. The fruits of the Award
have so far not been provided to its workmen by HTL. The notional
letters of appointment dated 19.04.2013 were issued to the workmen
pursuant to the consensus arrived at between the parties on 17.04.2013
in CM (M) 368/2013 in this Court without prejudice to their rights and
contentions. The workmen have not been reinstated w.e.f. 03.10.2004
and the benefit of "continuity of service" has also not been extended
to them by HTL. Unfortunately, an attempt has been made by HTL to
invoke Section 25FFF of the ID Act on 09.12.2013 against the
workmen on the ground that after having sold the printing undertaking
to HTML, the printing undertaking of HTL was closed in the year
2005 and permanently removed from the list of registered factories by
the Inspector of the factories w.e.f. 04.07.2008.
8. The impugned order dated 14.05.2016 passed by the Ld. ADJ in
the Execution Petition No.23/2016 is the subject matter of challenge
in this writ petition filed by HTL under Article 227 of the Constitution
of India. The operative part of the impugned order reads as under: -
"........................................................................
That the reinstatement letter dated 19.04.13 itself shows
that it is not being issued in compliance of the Tribunal's
Award dated 23.01.12 and is rather been issued on the
basis of an offer/undertaking/statement given by the JD to
the High Court on 17.04.13 in a subsequent off shoot of the
matter.
That this reinstatement letter no where contains a specific
averment that the workmen, to whom this letter is
addressed, is reinstated with effect from 30.10.04 (sic) as
directed in the Award.
Taking a contrary stand to what was being argued earlier a
plea was raised on behalf of JD that despite the above M/s
HTL had treated the workmen to be taken into service from
03.10.04, but no document in support of this plea was
placed on record granting any benefit to either of the
workmen for the period 03.10.04 to 19.04.13 while
disbursing the salaries to the workmen. Although attention
of this Court is drawn to a statement of account placed on
record in this execution petition whereby column is
dedicated to a subsequent termination letter issued by the
JD to the workmen dated 09.12.13 under Section 25 FFF of
Industrial Dispute Act, 1947. The Court is made to believe
that the subsequent retrenchment compensation has been
calculated in a way as the workmen was in the continued
service with effect from 03.10.04. In my considered view
this pleas (sic) of no avail to the JD in so far as method of
calculation of retrenchment compensation claimed to have
been adopted by the JD singly handedly does not justify
there claim that the reinstatement service from the
workmen from 03.10.04.
In view of the above I have no hesitation in concluding that
the detail award passed by Ld Industrial Tribunal
Karkardooma on 23.01.2012 whereby JD Hindustan Times
Ltd was directed to reinstate the services of retrenched
workmen with effect from 03.10.04 has not been complied
with by the JD either in letter or in spirit. The purported
reinstatement letter issued to the workmen on 19.04.13 is
an eyewash and a moonshine and is no compliance of the
award. It is hereby order (sic) that the Award under
execution remains totally non complied till date.
To the above extent, the execution petition of the Workmen
is hereby ordered to be maintainable and is allowed to
continue for Execution of Award dated 23.01.12.
The JD M/s Hindustan Times Ltd is given four weeks time
to reinstate all the eligible Workmen with effect from
03.10.04 itself. The Workmen shall the (sic) entitled to
salaries and other service benefits as per the Award while
taking in to account the salaries already disbursed to the
employees between the period 18.04.13 to 09.12.13.
In so far as fresh and proper reinstatement is happening in
compliance of the Award under execution, the subsequent
attempt on the part of JD HTL of freshly terminating the
services of the workmen by invoking Section 25 FFF of I.D.
Act shall not come in the way being without cause of action
and nonest. Unless reinstated, service of no workmen can
be terminated as sought to be done. The Workmen shall be
deemed to be in continuous service, even as on date unless
some of them might have reached the age superannuation.
Vakalatnama for another three workmen filed on behalf of
award holder.
Now to come up for compliance of the order on 23.07.2016.
Sd/-
(Surinder S. Rathi)
ADJ-03/PHC/New Delhi
14.05.2016."
9. With regard to the back wages from the date of termination i.e.
03.10.2004 till award, the Ld. ADJ observed as under:-
"........................................................................
As far as back wages are concerned no doubt that the
issue is not subjudice before this Court in this execution
and is under consideration of Hon‟ble Supreme Court but
the issue of reinstatement of workman from 03.10.2004 is
something, the compliance of which has to be ensured by
this Court."
10. The impugned order made it clear that the reinstatement is to
take effect from 03.10.2004. The relevant para reads as under: -
"It has to be borne in mind that the Award under execution
dated 23.01.2012 passed by ld Industrial Tribunal has
attained finality and being legally binding the same has to
be complied both in letter as well as spirit. The part relief
qua payment of back wages as detail supra, is now
subjudice before Hon‟ble Supreme Court and it is the only
the issue qua reinstatement which is sought to be executed.
Having once concluded by Ld. Industrial Tribunal that
the termination of the workmen done by M/s. HTL on
03.10.2004 is illegal and nonest this finding cant be
fiddled in any manner. The consequential reinstatement
ordered by Ld. Tribunal has to be with effect from
03.10.2004 itself and not from any future date which the
JD may decide or agree to. There is no ambiguity in the
Award on this score."
11. The Ld. ADJ found favour with the arguments submitted on
behalf of the workmen that salaries offered to them from 18.04.2013
were not calculated on the basis of what the workmen would have
drawn had they continued unabruptly in the JD‟s services from
03.10.2004 to 18.04.2013 and that the workmen have not been given
the benefits like leave encashment, medical benefits and other deemed
benefits to which they are entitled over and above the salary.
12. To adjudicate upon the point raised by the petitioner in this writ
petition, it would not be out of place to refer to the terms of the
reference dated 02.02.2015 by the Govt. of NCT of Delhi to the IT: -
"Whether the action of management of M/s Hindustan
Times Ltd. in transferring the ownership of its printing
undertaking to M/s H.T.Media Ltd. w.e.f. 02.10.2004 and
terminating the services of workmen whose names are
given in Annexure A by invoking the provisions of Section
25FF of Industrial Disputes Act, 1947 is illegal and/or
unjustified and if so, to what relief are the workmen entitled
and what directions are necessary in this respect?"
13. The IT framed the following issues on 20.02.2009:-
1. Whether HTML is the subsidiary company of HTL
and managed by same management i.e. persons
belonging to the same family, if so, its effect? OPW
2. Whether the transfer letters were issued to the
workmen?
3. Whether decision of management No.1 in transferring
of the ownership of Printing Undertaking to
management No.2 is bonafide to protect the interest of
workmen? If not, to what effect? OPM
4. Whether there was any refusal on the part of
individual workmen to the said transfer of ownership
from HTL to HTML? OPM
5. Whether management No.1 duly communicated the
workmen about the transfer of printing undertaking to
management No.2, if not, its consequences? OPM.
6. Whether termination/retrenchment of the workmen is
in terms of relevant provisions of the ID Act i.e.
Chapter 5B of the Act?
7. Whether the workman are bound by the unauthorised
statement of the office bearer of the Union that
workmen will not comply the order of transfer? OPM.
8. Whether references are illegal incompetent? (OPM).
Whether 315 workmen named in Annexure A have
taken their full and final settlement. Whether the
claim statement has been sent by competent person
having locus standi? OPW
9. In terms of reference."
14. Following additional issues were framed on 07.08.2009:-
"1. Whether any employer-employee relationship has
ever existed between the claimants and the
applicant/Management No.2? OPW
2. Whether the claimants can claim any relief from the
management No.2? OPW
3. Whether the Hindustan Times Employees Union
represents the interest of the employees of the
management No.2 and is entitled to raise an industrial
dispute against them? OPW"
15. By award dated 23.01.2012 the IT found that the Directors of
the holding company HTL and its subsidiary HTML are inter-
changeable. He found that the ownership of the management of these
two companies is substantially in the holding company and it cannot
be said that under any agreement to sell, transfer has taken place,
though, in form it has taken place, and when the transferor and
transferee are the same set of the companies, Section 25FF of the ID
Act is not applicable.
16. Under issue no.3, the IT found that the management no.1 and 2
are not separate entities as HTML is the subsidiary company of HTL
and is managed by the same management. HTML is the extended
version of HTL. The decision of the petitioner in transferring the
ownership of printing undertaking to HTML is not bona fide to protect
the interest of the workmen. HTML‟s refusal to continue with the
services of workmen of HTL in printing undertaking is not justified.
17. Under issue no.4, the IT held that there was no refusal on the
part of either of the workmen to the said transfer of the ownership to
HTML from HTL.
18. Under additional issue no.1 and 2, the IT found that the
workmen are the employees of HTL and not of HTML and there is no
question of the workmen claiming relief from HTML. He also held
that Section 25H of the ID Act is not applicable as there is no
retrenchment within the meaning of Section 2 (oo) of the ID Act.
19. Under issue no.8, the IT found that 43 workmen out of 315 had
taken their full and final settlement.
20. The concluding paras 87, 89 and 90 of the Award dated
23.01.2012 read as under: -
"87. In view of my findings on issue No.1, it is held
that action of management of M/s Hindustan Times Ltd.
in transferring the ownership of its Printing undertaking
to M/s H.T. Media Ltd. w.e.f 02.10.2004 and terminating
the services of workmen whose names are given in
Annexure-A by invoking the provisions of Section 25FF
of Industrial Disputes Act 1947 is illegal and unjustified."
"89. In view of above factual and legal position of
law, workmen/claimants (except 43 workmen/claimants,
who have settled their disputes u/s 18(1) of I.D. Act) are
entitled to the relief of treating them in continuity of
service under terms and conditions of service as before
their alleged termination w.e.f. 03.10.2004. They will not
be entitled to any notice pay or compensation u/s 25 FF of
Industrial Disputes Act. The said notice pay or
compensation, if any, received by them, will have to be
refunded by them."
"90. Hence, by way of relief, it is directed that
management of M/s Hindustan Times Ltd. will reinstate
272 workmen treating them in continuity of service under
terms and conditions of service as before their alleged
termination i.e. 03.10.2004. Award is passed
accordingly."
21. The observation of the IT in Para 89 of the Award about
refund of notice pay/compensation u/s 25FF of the ID Act by the
workmen to HTL, "..................The said notice pay or
compensation, if any, received by them, will have to be refunded by
them" has unnecessarily given the opportunity to the petitioner to
deny/delay the benefit of the award to the workmen.
22. In the Execution Petition No.1/2012 (RBT 3/2012), the
workmen had, inter-alia, claimed back wages against the petitioner.
However, by an order dated 12.10.2012, the executing court declined
their request to grant them back wages as the IT had not awarded the
same. This order dated 12.10.2012 came to be challenged in W.P.(C)
No. 1000/2013 by the workmen. The learned Single Judge vide
judgment dated 17.11.2014 held that "learned Tribunal has granted
reinstatement with full back wages vide its award dated 23.01.2012." This
order of the learned Single Judge was set aside by the Division Bench
in LPA No.6/2015 by judgment dated 23.02.2015 concluding
"....Thus, it has to be held that the workmen were not held entitled to the
payment of any back wages..........." The order of the DB was assailed
by two groups of workmen in SLP(C) No.10578/2015 and SLP(C)
No.8979/2016, which were dismissed on 01.08.2016 and 08.07.2016
respectively.
23. In the meanwhile, on 04.01.2013 before the executing court, it
was argued on behalf of the workmen that they had not received any
notice pay or compensation under Section 25FF of the ID Act and
therefore, the question of refund to the management does not arise.
This contention was disputed by HTL. The executing court, however,
held that the refund of notice pay or compensation under Section 25FF
of the ID Act is not a precondition to the reinstatement of the
workmen and therefore the management/judgment debtor is bound to
reinstate the decree holders/workmen.
24. This order dated 04.01.2013 was already a subject matter of
challenge in CM(M) No. 368/2013 by HTL when the LPA No. 6/2013
was decided by the DB on 23.02.2015. The subject matter before the
DB i.e. whether the workmen are entitled to back wages, was decided
against the workmen but with further observation as "24......the
workmen who had taken the compensation could not have retained the same
and additionally claimed a right of reinstatement. The return of the
compensation to the management was thus linked to the relief of
reinstatement and had nothing to do with the idea of the back wages."
25. The learned Single Judge has decided the said CM(M)
No.368/2013 by judgment dated 14.09.2015. The court held that
"20... The court is of the view that the impugned order has not gone beyond
the award and the learned Executing Court has passed the order under
Section 11(9) and (10)." The Ld. Single Judge further held that "23......
Insofar as the impugned order has limited itself to the Award as well as in
terms of the submissions made on behalf of the management, the impugned
order does not suffer from any material irregularity. It has limited itself to
the material on record and no interference is called for in the present
proceedings. It cannot be said that the impugned order suffers from either
lack of jurisdiction or is not based on the record or suffers from material
irregularity or would lend to palpable miscarriage of justice. There is no
reason to interfere with the impugned order". However, keeping in view
the observations of the DB in Para 24 of the judgment dated
23.02.2015, the Ld. Single Judge observed that "25. The Executing
Court did not have the benefit of the above view of the Division Bench
hence the impugned order cannot be faulted. But now, it having been
adjudicated that the return of compensation to the management is linked to
the relief of reinstatement, the parties will be at liberty to pursue the logical
corollary thereto".
26. The learned Senior Counsel for the petitioner initially argued
that the workmen had received notice pay/retrenchment compensation
under Section 25FF of ID Act from HTL. This was vehemently
disputed by the learned Senior Counsel for the workmen who
requested that let a specific affidavit be filed by the petitioner enlisting
the details of workmen who had received the notice pay/compensation
under Section 25FF of the ID Act. The petitioner could not specify the
name of any workman, either in the petition or during the course of
the arguments as to who had received the notice pay or compensation
under Section 25FF of ID Act. Ultimately, during the course of
arguments, on instructions, learned senior counsel Mr.Abhishek M.
Singhvi and briefing counsel Ms.Raavi Birbal, admitted at the Bar that
the notice pay/compensation cheques handed over to the workmen
under Section 25FF of the ID Act were not enchased by either of the
workmen. Therefore, when there was no payment of notice pay or
compensation u/s 25FF of the ID Act by the HTL to either of the
workmen, there is no question of any refund by the workmen.
27. The learned senior counsel for the petitioner argued that the
Ld.ADJ by impugned order exceeded its jurisdiction beyond the
award dated 23.01.2012 and granted not only the relief of payment of
the back wages but also the service benefits like leave encashment,
medical benefits and notional increments in salary, which were never
granted by the IT. He urged that the award dated 23.01.2012 directed
the petitioner to reinstate the workmen on 23.01.2012 treating them in
"continuity of service" whereas the executing court directed the
petitioner to reinstate the workmen w.e.f. 03.10.2004. He argued that
the workmen were in fact reinstated by the letter dated 19.04.2013 and
salaries were paid in accordance with law and the executing court has
committed an error by holding that these letters of notional
reinstatement are an eyewash and the award has not been complied
with.
28. He has relied upon a judgment of Hon‟ble Supreme Court in
A.P. SRTC Vs. Abdul Kareem, (2005) 6 SCC 36, to urge that
merely because a workman had been directed to be reinstated without
back wages, he could not claim the benefits of increments notionally
earned during the period he was out of service. He further relied upon
another judgment of Hon‟ble Supreme Court in A.P. SRTC Vs.
S.Narsagoud, (2003) 2 SCC 212, to urge that in case of reinstatement
with continuity of service without back wages, benefit of notional
increment was not granted by the Apex Court. He also relied upon a
DB Judgment of Madras High Court in N. Krishnamoorthy Vs.
Abhijit Datta and others, 2005 SCC OnLine Mad 833, to urge that
"reinstatement with continuity of service alone" means that the
employee will get the terminal benefits at the time of retirement as he
had been in continuity of service. He further relied upon a judgment
of Single Bench of AP High Court in G. Srinivasan Vs. APSRTC &
Anr., 2003 (4) ALD 18, to urge that in the absence of specific
direction other than reinstatement and continuity of service, workman
is not entitled to notional increments.
29. He referred to a DB decision dated 08.11.2012 of Karnataka
High Court in Writ Appeal No. 16714/2011 Bangalore Metropolitan
Transport Corporation Vs. G.V. Thimmappa, to urge that where an
employee is directed to be reinstated with continuity of service, either
grant of back wages or consequential benefits is not automatic and the
employee would be entitled to only to those benefits which are
expressly granted.
30. He, in the alternative, without prejudice, submitted that in case,
this Court awards some benefits because of award dated 23.01.2012
directing "continuity of service under terms and conditions of service
as before their alleged termination", the workmen are still not entitled
to the benefit of LTC, medical reimbursement, salary for earned leave,
etc. He relied upon a judgment of Karnataka High Court in the case of
K.R. Tyagi Vs. National Textile Corporation and Another, 1997
(3) LLN 226, to urge that the word reinstatement contemplates
payment of back wages and the employee must be deemed to have
remained in service once the order of termination is set aside. But it
cannot be said that earned leave salary, LTC and medical
reimbursement were payable for the period the employee was
prevented from performing his duties. He also relied upon a judgment
of Apex Court in Bharat Electronics Ltd. Vs. Industrial Tribunal,
Karnataka, Bangalore and Anr., 1990 (2) SCC 314, to urge that the
night shift allowance unless earned is not a part of the wages.
31. He referred to Section 25FFF of the ID Act to urge that a fresh
cause of action accrued to the petitioner on account of closure of the
printing undertaking of HTL in the year 2005 and its name was
removed from the list of registered factories by the Chief Inspector of
Factories, Delhi in the year 2008. He emphasized that on account of
closure of the industry, no entry to any workman is possible, and for
that reason on accrual of the fresh cause of action, the petitioner had
issued notice dated 09.12.2013 to all the workmen offering them
compensation under Section 25FFF of the ID Act. He relied upon a
judgment of the Single Bench of this court in Shri Krishan Pal Singh
Vs. Delhi Transport Corporation, (2000) 83 DLT 537. He submitted
that in case the workmen had any grievance, they could have raised a
fresh industrial dispute for adjudication by the Industrial Tribunal. He
urged that the executing court could not have observed that the
termination of the workmen under Section 25FFF of ID Act is nonest
and the workmen shall be deemed to be in continuous services.
32. He placed reliance on a judgment of Punjab and Haryana High
Court in the case of Darshan Singh Vs. Presiding Officer,
Manu/PH/1980/2014, to urge that after reinstatement, a fresh order of
retrenchment constituted a fresh cause of action which could be
challenged only by an independent reference.
33. He has relied upon a judgment titled as Hondoram
Ramchandra Vs. Kadam, (2007) 14 SCC 277, wherein the reference
of the industrial dispute before the Labour Court was under Section
25FFF of the ID Act, which is not in the present case. Similar is the
position in District Red Cross Society Vs. Babita Arora, 2007 (7)
SCC 366.
34. Per contra, it is argued by Ms.Meenakshi Arora, learned senior
counsel for the respondent/workmen that paras 89 and 90 of the award
dated 23.01.2012 directed the management to reinstate 272 workmen
treating them in "continuity in service" under the terms and conditions
of service as before the alleged termination on 03.10.2004. She argued
that the impugned order rightly held that the workmen are to be
reinstated w.e.f. 03.10.2004 and not from any subsequent date. She
argued that reinstatement letters dated 19.04.2013 were issued by the
management pursuant to the semi-consensus between the parties on
17.04.2013 in CM (M) 368/2013 without prejudice to their respective
rights and contentions leaving all the issues open. She submitted that
the letters of notional reinstatement dated 19.04.2013 issued by HTL
did not provide de facto or de jure appointment to the workmen. She
urged that vide letters dated 19.04.2013, the management asked the
workmen to report in person to collect their salaries towards notional
reinstatement. They were not allowed to enter the premises to do the
work. She further submitted that the benefits of continuity in service
as per the terms and conditions of the service of the workmen as
directed by the Award were never offered or given by the management
and the executing court has rightly given the directions to HTL.
35. She has relied upon a DB Judgment of this Court in Mahabir
Prasad v. Delhi Transport Corporation 2014 SCC OnLine Del
3757, wherein the charges of theft against the workman were not
proved and the Labour Court ordered his reinstatement without back
wages but with continuity of service and the workman was granted
benefit of ACP, Notional Pay Fixation Gratuity in order to reckon the
period between his removal and reinstatement as having been in
employment for pension gratuity and contribution of provident fund
etc.
36. She further argued that the action of the management to invoke
Section 25FFF of the ID Act is per se illegal and void ab initio. She
submitted that the services of the workmen were terminated by HTL
on 03.10.2004 and the reference was made by the Government of
NCT of Delhi on 02.02.2005. She referred to the notices dated
09.12.2013 issued to the workmen by HTL under Section 25FFF of
the ID Act, which inter alia mentions "the printing undertaking had in
fact been physically, completely and lawfully closed on and from
04.07.2008 i.e. the day the name of the factory was formally removed by the
Inspectorate of Factories from the list of registered factories, since the
company has no work to offer, it is now exercising its right under the Act
and proceeding to issue notice and compensation under Section 25FFF of
the Industrial Disputes Act, 1947 in view of the closure of the undertaking
in the year 2008."
37. She pointed out that the service of the workmen were
terminated under Section 25FF of the ID Act for the alleged reason of
transferring the ownership of printing undertaking to HTML by HTL
w.e.f. 02.10.2004. She submitted that the notices issued under Section
25FFF of the ID Act due to closure of printing undertaking in the year
2005 and its removal from the list of factories on 04.07.2008 by
Inspector of Factories were based on the same ground of transfer. She
submitted that the plea of closing the printing undertaking was never
taken by the petitioner before the IT.
38. She referred to an order dated 12.10.2012 to argue that even
during the course of arguments before the Executing Court, the
learned counsel for the petitioner stated that they are ready and willing
to reinstate the Decree Holders and consequently the executing court
directed that the Decree Holders be reinstated in terms of the Award
dated 23.01.2012. She submitted that if the petitioner had closed the
factory in the year 2005, why was such a statement made. She
submitted that the management has filed WP (C) 2247/2007 against an
interim Award dated 08.03.2007 which was finally disposed of on
16.01.2009 and even in this writ petition, the petitioner never
disclosed anything about the closure of its printing undertaking.
39. She submitted that the plea of closure of printing undertaking
taken by the management in CM(M) No.368/2013 in written
arguments dated 28.03.2014 was rejected by this Court on 23.02.2015.
40. She submitted that renowned newspapers, The Hindustan Times
(English) and Hindustan Dainik (Hindi) and many magazines continue
to go to print and publication even now under HTL and HTML and
the plea of transfer and closure taken by the petitioner is false.
41. I have heard the learned senior counsel for the parties.
42. After a threadbare analysis of Article 226 and 227 of the
Constitution and considering a large number of judicial precedents,
the Hon‟ble Supreme Court in Surya Dev Rai Vs. Ram Chander Rai
(2003) 6 SCC 675 laid down the parameters for exercise of
jurisdiction by the High Court as under:-
(1) Amendment by Act 46 of 1999 with effect from
01.07.2002 in Section 115 of Code of Civil Procedure
cannot and does not affect in any manner the
jurisdiction of the High Court under Articles 226 and
227 of the Constitution.
(2) Interlocutory orders, passed by the courts
subordinate to the High Court, against which remedy of
revision has been excluded by the CPC Amendment Act
No. 46 of 1999 are nevertheless open to challenge in,
and continue to be subject to, certiorari and supervisory
jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is
issued for correcting gross errors of jurisdiction, i.e.,
when a subordinate court is found to have acted (i)
without jurisdiction - by assuming jurisdiction where
there exists none, or (ii) in excess of its jurisdiction - by
overstepping or crossing the limits of jurisdiction, or
(iii) acting in flagrant disregard of law or the rules of
procedure or acting in violation of principles of natural
justice where there is no procedure specified, and
thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate
courts within the bounds of their jurisdiction. When
the subordinate Court has assumed a jurisdiction
which it does not have or has failed to exercise a
jurisdiction which it does have or the jurisdiction
though available is being exercised by the Court in a
manner not permitted by law and failure of justice or
grave injustice has occasioned thereby, the High Court
may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to correct
mere errors of fact or of law unless the following
requirements are satisfied : (i) the error is manifest and
apparent on the face of the proceedings such as when it
is based on clear ignorance or utter disregard of the
provisions of law, and (ii) a grave injustice or gross
failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident i.e.,
which can be perceived or demonstrated without
involving into any lengthy or complicated argument or a
long-drawn process of reasoning. Where two inferences
are reasonably possible and the subordinate court has
chosen to take one view the error cannot be called gross
or patent.
(7) The power to issue a writ of certiorari and the
supervisory jurisdiction are to be exercised sparingly
and only in appropriate cases where the judicial
conscience of the High Court dictates it to act lest a
gross failure of justice or grave injustice should
occasion. Care, caution and circumspection need to be
exercised, when any of the abovesaid two jurisdictions
is sought to be invoked during the pendency of any suit
or proceedings in a subordinate court and the error
though calling for correction is yet capable of being
corrected at the conclusion of the proceedings in an
appeal or revision preferred there against and
entertaining a petition invoking certiorari or
supervisory jurisdiction of the High Court would
obstruct the smooth flow and/or early disposal of the
suit or proceedings. The High Court may feel inclined
to intervene where the error is such, as, if not corrected
at that very moment, may become incapable of
correction at a later stage and refusal to intervene
would result in travesty of justice or where such refusal
itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or
supervisory jurisdiction will not convert itself into a
Court of Appeal and indulge in re-appreciation or
evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or technical
character.
(9) In practice, the parameters for exercising
jurisdiction to issue a writ of certiorari and those calling
for exercise of supervisory jurisdiction are almost
similar and the width of jurisdiction exercised by the
High Courts in India unlike English courts has almost
obliterated the distinction between the two jurisdictions.
While exercising jurisdiction to issue a writ of certiorari,
the High Court may annul or set aside the act, order or
proceedings of the subordinate courts but cannot
substitute its own decision in place thereof. In exercise
of supervisory jurisdiction the High Court may not only
give suitable directions so as to guide the subordinate
court as to the manner in which it would act or proceed
thereafter or afresh, the High Court may in appropriate
cases itself make an order in supersession or substitution
of the order of the subordinate court as the court should
have made in the facts and circumstances of the case.
43. In Harjinder Singh (supra) the Hon‟ble Supreme Court has
held that the ID Act and other similar legislative instruments are social
welfare legislation which are to be interpreted in view of the goal set
out in the preamble of the Constitution and the provisions contained in
Part-IV thereof in general and Article 38, 39 (a) to (e) 43 and 43A in
particular and ensure that the workers get their dues. The paras No.21,
23, 24 and 26 of the judgment reads as under:-
"21. Before concluding, we consider it necessary to
observe that while exercising jurisdiction under Articles
226 and/or 227 of the Constitution in matters like the
present one, the High Courts are duty bound to keep in
mind that the Industrial Disputes Act and other similar
legislative instruments are social welfare legislations
and the same are required to be interpreted keeping in
view the goals set out in the preamble of the
Constitution and the provisions contained in Part IV
thereof in general and Articles 38, 39(a) to (e), 43 and
43A in particular, which mandate that the State should
secure a social order for the promotion of welfare of
the people, ensure equality between men and women
and equitable distribution of material resources of the
community to sub-serve the common good and also
ensure that the workers get their dues. More than 41
years ago, Gajendragadkar, J. opined that:
"10......the concept of social and economic
justice is a living concept of revolutionary
import; it gives sustenance to the rule of law
and meaning and significance to the ideal of
welfare State."
(State of Mysore Vs. Workers of Gold Mines, AIR
p.928, para 10).
"23. The preamble and various Articles contained in
Part IV of the Constitution promote social justice so
that life of every individual becomes meaningful and
he is able to live with human dignity. The concept of
social justice engrafted in the Constitution consists of
diverse principles essentially for the orderly growth and
development of personality of every citizen. Social
justice is thus an integral part of justice in the generic
sense. Justice is the genus, of which social justice is
one of its species. Social justice is a dynamic devise to
mitigate the sufferings of the poor, weak, dalits, tribals
and deprived sections of the society and to elevate them
to the level of equality to live a life with dignity of
person. In other words, the aim of social justice is to
attain substantial degree of social, economic and
political equality, which is the legitimate expectation of
every section of the society.
24. In a developing society like ours which is full of
unbridgeable and ever widening gaps of inequality in
status and of opportunity, law is a catalyst to reach
the ladder of justice. The philosophy of welfare State
and social justice is amply reflected in large number
of judgments of this Court, various High Courts,
National and State Industrial Tribunals involving
interpretation of the provisions of the Industrial
Disputes Act, Factories Act, 1948; Payment of Wages
Act, 1936; Minimum Wages Act, 1948; Payment of
Bonus Act, 1965; Workmen's Compensation Act,
1923; Employees' State Insurance Act, 1948;
Employees' Provident Funds and Miscellaneous
Provisions Act, 1952 and Shops and Commercial
Establishments Act enacted by different States.
26. In LIC v. Consumer Education and Research
Centre, K. Ramaswamy, J. observed that social
justice is a device to ensure life to be meaningful and
liveable with human dignity. The State is obliged to
provide to workmen facilities to reach minimum
standards of health, economic security and civilised
living. The principle laid down by this law requires
courts to ensure that a workman who has not been
found guilty cannot be deprived of what he is entitled
to get. Obviously when a workman has been illegally
deprived of his device then that is misconduct on the
part of the employer and employer cannot possibly
be permitted to deprive a person of what is due to
him.
44. The Ld. senior counsel for the workmen has admitted that the
back wages from 03.10.2004 to 23.01.2012 against the management
were not in issue before the Executing Court. The Executing Court has
also referred to the order of the DB dated 23.02.2015 wherein it was
held that workmen are not entitled to any back wages. The SLP (C)
No.10578/2015 and SLP (C) No.8979/2016 against the order dated
23.02.2015 of the DB were dismissed by the Hon‟ble Supreme Court
on 01.08.2016 and 08.07.2016 respectively. Admittedly, the workmen
are not entitled to wages for the period from 03.10.2004 till
23.01.2012.
45. This Court is to deal with the issue of legality of the impugned
order directing:-
(i) that reinstatement is to take place w.e.f. 03.10.2004;
(ii) grant of service benefit to the workmen;
(iii) that the letter of notional reinstatement dated
19.04.2013 does not comply with the award dated
23.01.2012; and
(iv) that the subsequent action of terminating the
services of the workmen by notices dated 09.12.2013
under Section 25FFF of the ID Act is nonest and unless
reinstated, service of no workman can be terminated.
46. Vide Para 87 of the Award dated 23.01.2012, the IT has held the
action of HTL in transferring the ownership of its printing undertaking
to HTML w.e.f. 02.10.2004 and terminating the services of the
workmen under Section 25FF to be illegal and unjustified. Para 89 of
the Award entitled the workmen to the relief of being treated in
"continuity of service" under the terms and conditions of service as
before their termination w.e.f. 03.10.2004. Para 90 of the Award
directed HTL to reinstate 272 workmen treating them in "continuity of
service" under the terms and conditions of service as before their
termination i.e. 03.10.2004. Since the termination of the workmen
w.e.f. 03.10.2004 has been held to be illegal and unjustified by the IT
by Award dated 23.01.2012, HTL is required to reinstate the workmen
w.e.f. 03.10.2004 and there is no ambiguity and the award is explicit.
47. The award has granted the benefit of continuity of service to the
workmen as per the same terms and conditions of service which they
were availing before their termination i.e. 03.10.2004. Similar
question came up for consideration before the DB of this Court in
Mahabir Prasad (supra). DB has elaborately considered the
judgment of the Hon‟ble Supreme Court in S. Narsagoud (supra) and
Abdul Karim (supra). In Narsagoud (supra), the Labour Court
directed the reinstatement of the workmen but without back wages and
there was no specific direction that the employee would be entitled to
the consequential benefits. The Hon‟ble Supreme Court held that it
would be incongruous to suggest that an employee who has been held
guilty and has remained absent for a long time continues to earn
increments though there is no payment of wages for the period of
absence. Similarly, in Abdul Karim (supra) the Apex Court has held
that employee after having been held guilty of unauthorized absence
from duty cannot claim the benefit of increments notionally earned
during the period of unauthorised absence for want of a specific
direction merely because he has been directed to be reinstated with
benefit of continuity in service. In Mahabir Prasad's case (supra)
the Industrial Adjudicator has directed the reinstatement of workmen
with continuity of service but without back wages like the present
case. This Court in Mahabir Prasad's case (supra) found that the
petitioner had to battle for over a decade and a half. The Industrial
Adjudicator held the enquiry against him to be illegal; went into the
material and found that the charge of misconduct was baseless. It
consequently directed reinstatement without back wages. The denial
of back wages was not in question before the DB. The workman
claimed benefits of promotion, ACP, notional pay fixation for the
purpose of pension, gratuity and contribution to the provident fund,
which was opposed by the management/DTC. The Court observed
that if the DTC‟s contention is to be accepted, the workman would
stand doubly penalized for the delay in securing justice, plainly for no
fault of his. This Court appreciated the fact that the denial of 15
years‟ salary would result in his denial of pension, or at least a vastly
diminished pension, gratuity and other terminal benefits and if these
benefits are denied, the direction to grant continuity of service would
be a hollow relief. Para 20 and 21 of the judgment in Mahabir
Prasad's case (supra) reads as under: -
"20. The above discussion reveals that there appeared to
be no standard pattern of directing how a reinstated
employee is to be given the benefit after reinstatement. In
Deepali Gundu Surwase(supra), for the first time, the
restitutionary principle underlying reinstatement and other
benefits was spelt out and a semblance of uniformity was
attempted. If that is to be kept in mind, what is apparent in
this case is that the petitioner had to battle for over a
decade and a half to secure justice. The Labour Court
held the enquiry against him illegal; went into the
material and found that the charge of misconduct was
baseless. It consequently directed reinstatement without
backwages. Whilst the denial of backwages is not in
question, the Award directed continuity of service. If
DTC's contention were to be accepted, the petitioner
would stand doubly penalized for the delay in securing
justice, plainly for no fault of his. The denial of 15 years'
salary would result in his denial of pension, or at least a
vastly diminished pension, gratuity and other terminal
benefits. If these benefits are denied, the direction to
grant continuity of service would be a hollow relief.
Furthermore, to restore him in the pay scale at the stage of
his termination would be to freeze him in a pay scale that is
no longer existent, or at least unrecognizable.It is pertinent
that a withholding of 2 increments for two years, with
cumulative effect has been held to be a major penalty
(imposable only after an enquiry) since the increments
"would not be counted in his time-scale of pay" in
perpetuity. In other words, the clock would be set back in
terms of his earning a higher scale of pay, by two scales.
Keeping this in mind, if the petitioner were to be restored
in the pay scale at the stage of his termination, it would
amount to withholding several increments, and thus be
equivalent to imposing a compounded major penalty.
21. Consequently, it is held that the direction to grant
continuity meant that the petitioner had to be given
notional increments for the duration he was out of
employment, in the grade and the equivalent grade which
replaced it later, till he reached the end of the pay scale.
Since there is no direction to give consequential benefits,
the petitioner cannot claim promotion as a matter of
right; it would have to be in accordance with the rules.
ACP benefits however, should be given. The notional pay
fixation would also mean that he would be entitled to
reckon the period between his removal and reinstatement
as having been in employment for pension, gratuity, and
contributions to provident fund etc. This Court directs the
DTC to issue an order extending these benefits to the
petitioner for the 15 year period between his dismissal in
1995 and his eventual reinstatement in 2011, within eight
weeks from today. The writ petition is allowed in these
terms; there shall be no order as to costs."
48. The SLP No.18985/2014 filed by the DTC against the DB
judgment of this Court in Mahabir Prasad's case (supra) was
dismissed in limine by the Hon‟ble Supreme Court on 12.12.2014
49. In the present case, there is no fault of the workmen unlike in
Abdul Karim (supra) and Narsagound (supra). HTL terminated the
services of the workmen on 03.10.2004 on the pretext of transfer of its
printing undertaking w.e.f. 02.10.2004, an action which was held
illegal and unjustified by the IT by award dated 23.01.2012. The IT
did not grant them the benefit of back wages but only continuity of
service under the terms and conditions of service as before termination
i.e. 03.10.2004. HTL is under command by Award dated 23.01.2012
to extend all service benefits to the workmen as they were entitled to
prior to the termination of their service on 03.10.2004. The words in
Para 89 of the award "In view of above factual and legal position of
law, workmen/claimants (except 43 workmen/claimants, who have
settled their disputes u/s 18(1) of I.D. Act) are entitled to the relief of
treating them in continuity of service under terms and conditions of
service as before their alleged termination w.e.f. 03.10.2004" and
para 90 "it is directed that management of M/s Hindustan Times Ltd.
will reinstate 272 workmen treating them in continuity of service
under terms and conditions of service as before their alleged
termination i.e. 03.10.2004" are not at all superfluous but have been
rightly scribbled to bestow workman with service benefits particularly
when they have been denied the back wages, otherwise, it would
amount to doubly penalizing the poor workmen for no fault of theirs.
50. Admittedly the letter of notional reinstatement dated 19.04.2013
issued by HTL to the workmen did not mention their reinstatement in
service in terms of the Award w.e.f. 03.10.2004. Further, admittedly
the benefits of continuity of service under the terms and conditions of
service as mentioned in the Award have also not been extended to the
workmen by the petitioner. Therefore, this Court is not persuaded with
the arguments of the learned senior counsel for the petitioner to
disagree with the directions given by the Ld. ADJ.
51. HTL terminated the services of the workmen on 03.10.2004 on
the ground of transferring the ownership of its printing undertaking to
HTML w.e.f. 02.10.2004 under Section 25FF of the ID Act. The
reference was made by the Government of NCT of Delhi on
02.02.2005. Pursuant to the filing of the statement of claim by the
workmen, both the managements filed their respective written
statements. It was not the case of either of the managements in the
written statement that the printing undertaking was closed by HTL in
2005. Issues were framed on 20.02.2009 and additional issues on
07.08.2009 but neither of the management averred or even mentioned
before the IT that the printing undertaking of the petitioner/HTL was
closed in the year 2005 or that its name was removed by the Inspector
of Factories w.e.f. 04.07.2008 from the list of registered factories.
HTL has examined its Director-cum-Company Secretary Mr. V.K.
Charoria as MW1 and Sh. Manoj Bhargava, Deputy General Manager
(Legal) as MW2. HTML has examined its AVP (supply chain) Sh.
Harish Nagpal but nowhere in their respective depositions have they
disclosed closure of its printing undertaking. Further, no arguments
were addressed on the point of closure before the IT, which ultimately
passed the award dated 23.01.2012. Even during the execution
proceedings, on 12.10.2012 it was stated by the Ld. Counsel on behalf
of petitioner that they are ready to reinstate the workmen and
accordingly the Executing Court directed that the workmen be
reinstated in terms of the Award. This fact of alleged closure was also
not pleaded by the petitioner in its Writ Petition (C) No.2247/2007
challenging the interim Award dated 08.03.2007 by the IT which was
disposed of on 16.01.2009.
52. HTL initially took the plea of transferring/selling its printing
undertaking on 02.10.2004 to its subsidiary HTML by an agreement
and services of the workmen were terminated under Section 25FF of
the ID Act w.e.f. 03.10.2004. The IT vide award dated 23.01.2012
held that the transfer was not bona fide and found that under an
agreement to sell, no transfer took place, though in form it had taken
place as HTL is a holding company and HTML is its subsidiary and
the Directors are inter-changeable. The award has held the action of
HTL in transferring the printing undertaking to HTML w.e.f.
02.10.2004 and terminating the services of the workmen to be illegal
and unjustified. Despite the award dated 23.01.2012 having attained
finality, the petitioner in CM (M) 368/2013 came up with the same
plea with a deceptive twist in written arguments dated 28.03.2014
under the heading "plea of closure is not a new plea" that on the
basis of an agreement dated 01.10.2004, HTL sold the printing
undertaking to HTML and applied to Inspector of Factories for
transfer of factory rights to HTML and after several correspondence,
printing undertaking was permanently removed from the list of
registered factories by letter dated 04.07.2008 and invoked Section
25FFF of the I.D. Act.
53. The action of HTL in issuing notice u/s 25FFF of the ID Act to
the workmen is nothing but an act of rubbing salt into the wounds of
the workmen. Since the action of HTL to transfer its printing
undertaking to its subsidiary HTML on 02.10.2004 has already been
held to be illegal and unjustified by award dated 23.01.2012, the
defence of HTL in applying to Inspector to transfer printing
undertaking to HTML or removal of its name from the list of
registered factories w.e.f. 04.07.2008 is no more available to them.
This action u/s 25FFF of the ID Act is nothing but to thwart the
benefits of award to the workmen. It is important to note that there is
no explanation by HTL as to why notice u/s 25FFF were issued to the
workmen on 09.12.2013 i.e. after about 8 years of alleged closure.
Obviously, this has been done only to deny/delay the benefits of
Award to the workmen.
54. It is noticed that the plea of closure taken by the management in its
written arguments in CM(M) No.368/2013 and its inability to reinstate
the workmen was declined by this Court by judgment dated
14.09.2015 and paras 21 and 22 read as under:-
"21. The management had also contended about
its inability to reinstate the workmen as the printing
establishment had been closed down and hence it
could not be forced to do an act of impossibility; that
it is settled law that a tribunal has no power to issue
orders for reinstatement if a company or its branch is
closed down and if this closure is genuine and real or
where the entire establishment or the empire is not
closed down but only a unit or undertaking is closed
down then the reinstatement cannot be granted in the
other units. The Court would note that in both the
aforesaid cases, the closure was either with respect to
the entire company or with respect to the functional
integrity of the other units. In this case, the
publication of the newspaper continues albeit
through the subsidiary owned company of the
Hindustan Times Ltd. The learned trial court has
held in its Award that the endeavour to transfer the
ownership of printing undertaking to the new
Management No.2, i.e. Hindustan Times Media Ltd.,
the wholly owned subsidiary of Hindustan Times Ltd.
was not bona fide. Therefore, the termination of the
workmen was illegal and unjustified. In view of the
facts of this case, the aforesaid two cases are clearly
distinguished. Likewise, reliance of the petitioners on
the dicta in Hondaram Ramchandra v. Yeshwant
Mahadev Kadam (2007) 14 SCC 277 and the judgment
of this Court in Ramjas Foundation v. Dheer Singh are
impermissible. This Court would note that the
continuity of service was sought against Hindustan
Times Ltd. and not against the other establishment, i.e.
Hindustan Times Media Ltd. The relief was granted
against Hindustan Times Ltd. Therefore, the
management was directed to reinstate 272 workmen
and treat them in continuity of service under the same
terms and conditions as before their alleged
termination dated 3.10.2014 (sic). Therefore, the relief
of reinstatement granted by the Industrial Tribunal
cannot be enforced or effectuated.
22. This Court is not persuaded by the said
contention for the reason that the management has
been aware of the relief of reinstatement since the
Award was passed and if it felt unable to perform the
direction given in the Award, the management ought
to have challenged the Award. But it chose not to.
This Court cannot, while exercising its supervisory
jurisdiction, reconsider the facts and arguments made
before the Tribunal as it would amount to this Court
acting as an Appellate Court. The Award is based on
the facts and materials placed before it. The Industrial
Tribunal has awarded the relief of reinstatement after
concluding that M/s Hindustan Times Ltd. and M/s
Hindustan Times Media Ltd. were one and the same
and that the termination of the workmen from M/s
Hindustan Times Ltd. was illegal. This Court cannot
sit in appeal and re-appreciate facts when the Tribunal
has acted well within its powers. As mentioned above,
the High Court‟s jurisdiction under Article 227 of the
Constitution of India is limited and it places a duty on
the High Court to adjudicate with great caution. The
circumstances when the supervisory jurisdiction of the
High Court can be invoked are sufficiently explained
through a rich stream of judgments. Therefore, this
Court is not inclined to entertain arguments that
would reach beyond the supervisory powers of the
High Court."
55. The judgment relied upon by the learned senior counsel for the
petitioner in Shri Krishan Pal Singh (supra) of this Court supports
the cause of the workmen instead of assuring any help to the
petitioner. In Shri Krishan Pal Singh (supra), this Court held that
the second termination order was issued due to a fresh cause of action
which was totally unconnected with the previous dispute and was
withdrawn. It was held by this Court in Shri Krishan Pal Singh's
case (supra) "it can be concluded that second termination order dated
25.10.1994 was a fresh cause of action totally unconnected with the
dispute referred relating to first termination which was withdrawn
and petitioner reinstated back in service much before initiating
action against the petitioner by way of departmental enquiry. For
this Labour Court has given liberty to seek fresh reference from the
appropriate Government in accordance with law in the impugned
award dated 2.3.98 itself. The writ petition is devoid of any merit and
is, accordingly, dismissed. There shall be no orders as to costs".
However, in the present case as discussed hereinbefore, action of the
petitioner in issuing the notice to the workmen u/s 25FFF of the ID
Act was completely connected with the previous dispute and based on
the same plea of transfer/selling of printing undertaking to HTML and
consequent closure of the printing unit and its removal from the
register of the Factories. Moreover, the argument of learned senior
counsel for the respondent that the ongoing print and publication of
the newspapers like, The Hindustan Times, Hindustan Dainik and
other magazines by HTL and HTML could not be disputed by the
learned senior counsel for the petitioner.
56. The Award dated 23.01.2012 has not been complied with by the
petitioner as workmen were denied reinstatement w.e.f. 03.10.2004.
HTL has also not given the benefits of continuity of service to the
workmen as per the terms and conditions of the service which were
available to them before 03.10.2004 in terms of the Award. Since, the
award of reinstatement has not been complied with, the petitioner has
no right to terminate the workmen till they are given reinstatement in
letter and spirit of award dated 23.01.2012 as held by the Punjab and
Haryana High Court in Darshan Singh's case (supra) "If the order of
reinstatement was complied with and he was reinstated, a fresh order
of retrenchment made after notice under Section 25F surely
constituted a fresh cause of action and that could have been
challenged only by means of an independent reference and the Labour
Court was bound to adjudicate of whether the termination was valid
or not." Even in Shri Krishan Pal Singh's case (supra) the workman
was reinstated back in service much before initiating action against
him by the Management. Shri Krishan Pal Singh's case (supra) and
Darshan Singh's case (supra) support the cause of the workmen in
the present case.
57. Therefore, I do not find any merit in the petition. The writ
petition is accordingly dismissed. Admittedly, HTL has not paid a
single penny to the workmen from the year 2004 till date, though
some payment of salary after 19.04.2013 till 09.12.2013 has been
made without giving them benefits of continuity of service as per
terms and conditions of their services. Under the Award dated
23.01.2012, the workmen are to be reinstated w.e.f. 03.10.2004 and
the benefits of "continuity of service" under terms and conditions of
service as before their termination w.e.f. 03.10.2004 are to be
provided to them. To begin with, let the management deposit the
wages of all the workmen, who have not yet attained the age of
superannuation with benefit of continuity of service as per terms and
conditions of service for the period from 01.01.2014 till 31.08.2018 as
per the Award with the Executing Court within one month which shall
be disbursed by the Executing Court to each workman individually.
Petitioner is directed to implement the Award dated 23.01.2012
immediately and reinstate the workmen w.e.f. 03.10.2004 and provide
them all the benefit of continuity of service as per terms and
conditions of service as available to them before their termination on
03.10.2004 in terms of Award. The Executing Court shall execute the
award in accordance with law.
(VINOD GOEL)
JUDGE
AUGUST 27, 2018
"shailendra/dkb"
